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MILLER v. BARKLEY

United States District Court, S.D. New York


August 3, 2005.

DARREN MILLER, Petitioner,
v.
WARREN BARKLEY Respondent.

The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

On September 18, 2003, pro se petitioner Darren Miller ("Miller") filed this timely petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Miller seeks to vacate his 2001 conviction following trial for criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds. In his petition, Miller claims that he is being held unlawfully on the following grounds: (1) the trial court's initial instruction to the jury concerning accomplice liability was incomplete and misleading; (2) the trial court's rereading of its instruction concerning accomplice liability to the jury, in response to a jury note during deliberations, was erroneous; (3) the prosecutor made improper comments during his closing argument to the jury; and (4) his trial counsel rendered ineffective assistance to him, which violated his rights under the Sixth Amendment.

  On December 10, 2003, the petition was referred to Magistrate Judge Kevin Nathaniel Fox for a report and recommendation (the "Report"). On January 31, 2005, Judge Fox recommended that the petition be denied.

  BACKGROUND

  The relevant facts are set forth in the Report and summarized here. Miller and a co-defendant were convicted following a jury trial in the Supreme Court of New York County. Miller was sentenced on July 24, 2001 to five to ten years of imprisonment.

  Miller, his co-defendant, and a third defendant who pleaded guilty, were arrested in connection with an undercover purchase of cocaine on the street. Miller was accused of being the "stash" holder. As the undercover officer counted money to pay for the drugs, Miller handed a sandwich bag with the cocaine vials to an accomplice to give to the officer. Miller testified in his defense at trial, claiming that he had been on the way to visit the mother of his daughter when he was arrested.

  At the charging conference Miller's counsel requested certain charges; the requests were largely denied. When told that he would be giving the first summation in twenty minutes, Miller's counsel left the courtroom. In his absence, the court asked counsel for Miller's co-defendant if he wanted a charge on identification; defense counsel did not respond.*fn1

  In his summation, Miller's counsel argued that an undercover officer spends his entire day "concerned with deception" and that the officer who had testified was not worthy of belief. The prosecutor asked the jury in his summation to weigh the credibility of Miller against that of the police officers who testified at trial. He added that Miller did not need to prove anything since the burden of proof was on the prosecution, but that the jury could consider the fact that the mother of Miller's daughter had not testified to corroborate Miller's testimony that he was scheduled to meet her that day.

  Following summations, Miller's attorney requested that the court charge that knowledge of a crime is insufficient to establish guilt. The court refused, indicating that it would use a patterned jury charge which conveyed essentially the same information. In response to a jury note during deliberations, the court advised it would reread the charge it had already given the jury. No attorney objected. After the charge was reread to the jury, Miller's counsel renewed his request for the Court to add that mere presence even with knowledge is insufficient. The Court declined to do so.

  Miller appealed the judgment of conviction to the Appellate Division, First Department on the grounds that (1) the trial court's initial and supplemental instructions concerning accomplice liability were incomplete and misleading, specifically because they (a) failed to quote N.Y. Penal L. § 20.00, (b) improperly focused on Miller's "participation" in the offense rather than his intentional assistance in the completion of the offense, (c) did not charge that mere presence at the scene "even with knowledge that the crime is taking place" does not by itself establish criminal liability, and (d) failed to explain the application of the law to the facts; and (2) the prosecutor's closing argument was improper in that it (a) suggested, improperly, that Miller was obliged to summon the mother of his daughter, about whom he had testified, and (b) vouched for the credibility of the prosecution's police officer witnesses. On June 3, 2003, the First Department unanimously affirmed his conviction, finding that (1) the instructions given by the trial court to the jury concerning accomplice liability correctly conveyed the applicable legal standards, (2) the trial court fulfilled its obligation to respond meaningfully to the jury's request for a supplementary instruction concerning accomplice liability when it repeated its original instruction to the jury on that matter, and (3) the challenged portion of the prosecutor's closing argument was not improper but, rather, constituted fair comment on the evidence in response to arguments urged upon the jury by Miller's counsel. See People v. Miller, 759 N.Y.S.2d 658 (App.Div. 1st Dep't 2003). Thereafter, Miller applied to the New York Court of Appeals for leave to appeal from the determination of the First Department. That application was denied on July 22, 2003. See People v. Miller, 100 N.Y.2d 584 (2003).

  Miller's pro se federal habeas corpus petition was received by the district court's Pro Se Office on September 18, 2003. The Report recommends that the petition be denied. After the Court granted Miller's request for an extension of time for filing objections to the Report, Miller filed objections dated March 1, 2005. Although Miller's objections largely reiterate the arguments set forth in his original petition without addressing the Report's analysis or conclusions, this Opinion reflects a de novo review of the Report. For the following reasons, the Report is adopted, and the petition is denied.

  DISCUSSION

  The Court may accept, reject, or modify, in whole or in part, the findings or recommendations set forth within the Report. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). The Court must make "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Where there are no objections, the Court may accept the Report, provided there is no clear error on its face. See Heisler v. Kralik, 981 F. Supp. 830, 840 (S.D.N.Y. 1997), aff'd sub nom. Heisler v. Rockland County, 164 F.3d 618 (2d Cir. 1998).

  Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, a writ of habeas corpus may issue only if the state court's adjudication of the claim either resulted in a decision that is contrary to or an unreasonable application of federal law as determined by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is presumed correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

  A. Jury Instructions

  The Report concludes that the portion of the jury instructions devoted to accomplice liability, and the rereading of the same in response to a note from the jury while deliberating, adequately conveyed that legal concept to the jury and did not affect the entire trial such that Miller was deprived of due process. In his objections, Miller argues that the trial court erred by (1) failing to include a restatement of N.Y. Penal L. § 20.00 in the charge,*fn2 (2) wrongfully focusing the jury on his "intentional participation" in the crime instead of the specific conduct enumerated in N.Y. Penal L. § 20.00, (3) failing to instruct the jury to consider evidence of guilt or innocence separately as to each individual,*fn3 and (4) rereading the allegedly incorrect instructions.

  Habeas relief is not available to correct a charge that is in error under state law. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). When confronted with a deficient jury instruction, a habeas court considers only "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 72 (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). It is well established that the instruction "may not be judged in artificial isolation," but must be considered in the context of the instructions as a whole and the trial record. Cupp v. Naughten, 414 U.S. at 147.

  The trial court relied on a model charge for a defendant who acts in concert with another to convey the elements for accomplice liability.*fn4 In doing so, the trial court advised the jury that a person is criminally liable for an offense when, among other things, the person "intentionally aids in its commission." The court explained that "intentionally aiding [an]other person to commit a crime constitutes participation" and a person "who intentionally participates in the commission of a crime may be found guilty of that crime." The court explained further that one who participates or aids in the commission of a crime must do so "voluntarily and purposefully and with a specific intent to do some act that the law forbids." The trial court also advised the jury that a person's "mere presence" would be an insufficient basis upon which to convict the person for acting in concert in the commission of a crime. Finally, the trial court advised the jury that "the prosecution has the burden of establishing beyond a reasonable doubt that the defendant was the individual who acted in concert with another person . . . to commit the crime charged."

  The trial judge's determination to rely upon language found in New York's model charge rather than to adopt language offered by Miller's counsel did not violate Miller's due process rights. The charge adequately conveyed all the required elements that the prosecution must establish in order for the jury to find Miller guilty of accomplice liability. Failing to include an actual recitation of N.Y. Penal L. § 20.00 in the charge, when the applicable law was correctly presented to the jury, is not a violation that federal habeas relief can redress.

  Next, Miller argues that the charge wrongfully focused the jury on his "intentional participation" in the crime, instead of focusing on the specific conduct enumerated in N.Y. Penal L. § 20.00. It appears that Miller is arguing that N.Y. Penal L. § 20.00 does not include "participation" as conduct that constitutes accomplice liability and the court therefore mistakenly focused the jury on conduct that is not included in the statute. The core of Miller's argument is that the jury may have found that a warning which he testified that he gave to his co-defendant not to sell the cocaine to the undercover officer constituted "participation" in the offense and that the jury therefore convicted him without determining whether he actually intended the sale to occur.

  It is true that N.Y. Penal L. § 20.00 does not contain the word "participation" or any derivative thereof; however, it does include "intentionally aids" as conduct which creates accomplice liability. While the charge did contain the word "participation," stating, for example, "every person who intentionally participates in the commission of a crime may be found guilty of that crime," it defined participation by referring to language from the accomplice liability statute, stating "intentionally aiding another person to commit a crime constitutes participation." Miller has failed to show that this definition or the use of the word "participation" in the charge violated his due process rights, or any other constitutional or federal right, and is therefore not entitled to habeas relief on this ground. Finally, since the jury instructions were proper, the rereading of the charge, in response to a jury note during deliberations, was also proper.

  B. Prosecutor's Closing Argument

  The Report concludes that the prosecution's closing argument was a proper and fair response to Miller's summation, and that the First Department's opinion was neither contrary to nor an unreasonable application of federal law. See 28 U.S.C. § 2254(d). Miller's objections essentially reiterate the same arguments set forth in his original petition without addressing the Report's analysis or conclusions.

  The Supreme Court has held that when defense counsel makes statements to a jury that invite reply by the prosecution, such a reply, when given, is not improper if, when considered within the context of the entire trial, the reply cannot be said to have deprived the defendant of a fair trial. See United States v. Young, 470 U.S. 1, 11-12 (1985); Lawn v. United States, 355 U.S. 339, 359 (1958). With his attack on the credibility of the undercover officer, defense counsel opened the door to the prosecution's arguments that the jury should compare the credibility of the witnesses and consider Miller's failure to call the mother of his daughter as a witness. Miller has not shown that the determination reached by the First Department in this regard was either contrary to or an unreasonable application of federal law.

  C. Ineffective Assistance of Counsel

  Miller's petition urged that he was denied effective assistance of counsel when his attorney left the courtroom before the conclusion of the charging conference.*fn5 The Report concludes that, although Miller failed to raise this claim on appeal, it should be deemed exhausted. The Report continues its analysis finding both cause and prejudice attributable to the procedural default of this claim. It determines, however, that the Sixth Amendment violation was harmless error.

  A violation of the Sixth Amendment right to counsel is subject to a harmless error analysis. Satterwhite v. Texas, 486 U.S. 249, 257 (1988). Miller's attorney missed a very brief portion of the charging conference, during which the court asked counsel for Miller's co-defendant one question. Miller's attorney had already presented his requests to the Court, and he added more requests following summations. Miller has not shown that his attorney's brief absence from the courtroom had any adverse impact on his defense. Assuming there was a violation of Miller's right to be represented by counsel at a critical stage of the proceedings against him, the Report is correct that any violation was harmless. CONCLUSION

  The Report is adopted, and the petition for a writ of habeas corpus is denied. In addition, no certificate of appealability shall be issued. The petitioner has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I also find pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition.

  SO ORDERED.


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